The difference between Civil Law and Common Law is that Civil Law is governed by statute, and Common Law evolved over the course of millennia from judicial tradition, earlier legal codes, tribal laws and mores and written and oral traditions. Common law is derived from customs and civil law by statutes. Under Civil Law, the main source of the law is legislation and under Common Law, prior judicial decisions are the determinant. In the United Kingdom, Common Law is the general standard and predominant form of justice and court proceedings. There is a body of Civil law as well it standardizes the Criminal Justice system and is codified into a ready reference that is easily accessible to all citizens. When Civil Law is utilized Judges must follow the written code. Civil law, frequently called Roman or Romano-German law is the English translation of Jus Civile, the Latin term meaning citizen’s law and is the term used to describe the judiciary. The term “Common Law” originated from the Anglophone people in England and describes their system of justice. .
The legal systems in the Western World finds itself evolving from the Code of Hammurabi and dates back to an era between 1795 and 1750 BCE. The compilation of a code of laws is one of the great contributions to humanity made by this ruler who recognized that “earthly rulers had moral duties, as did their subjects.” . The code was displayed on a stele in a public place and codified 282 laws with a specific structure. The punishments were harsh by today’s standards and varied depending on who was the victim and who was the perpetrator. Because the upper classes were expected to be more responsible, they received harsher punishments than someone who was presumed to have les resources. It is one of the earliest examples of law based in the presumption of innocence. .
Common Law is defined as “Judge-declared law. Law which exists and applies to a group on the basis of customs and legal precedents developed of hundreds of years in Britain.” . This body of law dates back to an oral tradition of tribal justice, which goes back thousands of years. This body of the law of the realm developed from the oral tradition as it was set in writing as laws; rights and power were passed through the feudal system to the nobility, then to the people. Because it is part of a tradition written by judges rather than politicians it is known as unwritten law or Lex Non Scripta. In 1756 William Blackstone wrote that common law was “to be found in the records of our several courts of justice in books of reports and judicial decisions, and in treatises of learned sages of the profession, prescribed and handed down to us from the times of ancient antiquity. They are the laws which gave rise and origin to that collection of maxims and customs which is now known by the name of common law.” .
With the spread of the British Empire, it was exported to the Colonies and is still recognized as the foundation of the judicial system in most of these nations. The United States Supreme Court recognized “the common law, though not to be found in the written records of the realm, yet has been long well known. It is coeval with civilized society itself, and was formed from time to time by the wisdom of man.” Justice Kenyon, R. v Rusby, . Other sources that have contributed to the body of Common Law are the concept of equity and the statutes imposed by Parliament.
The initial laws governing Great Britain come through the Roman occupation of the British Isles. This body of Civil Law was codified from the Roman Justinian’s Collection dating back to 533 AD. When Justinian’s Collection was rediscovered in the eleventh century, it became the predominant code of law for Italy and spread from there through continental Europe. This was not the case in the United Kingdom. With the fall of the Roman Empire the invading Germanic tribes brought their own system of justice with them that supplanted the Roman traditions and laws. Gibbon wrote the following about this transition from Roman to Germanic law. “The ferocious Saxons trampled on the laws of Rome. The proceedings of civil and criminal jurisdiction, the titles of honor, the forms of office, the ranks of society, and even the domestic right of marriage, testament and inheritance were finally suppressed, and the indiscriminate crowd of noble and plebian slaves was governed by the traditional customs, which had been coarsely framed for the shepherds and pirates of Germany." . As civilization evolved and emerged from the chaos that existed after the fall of the Roman Empire and the subsequent tribal invasions the Crown established and supported the King’s Bench that circulated throughout the kingdom and began to codify the common law into a consistent body of law that is the foundation of common law. The Norman Invasion of 1099 served to further modify this code of law.
Civil Law and the Civil Code are based on statues. In many ways, it is more flexible than the Common Law that traces its traditions back to the harsher justice of the Middle Ages. In the United Kingdom English Parliament has “never defined murder, never laid down that you must keep your contracts, or pay compensation for damage unlawfully caused to others. Since such definitions and rules are necessary, courts and lawyers can find them only in earlier case law. And since it would be absurd and unfair if judges could re-make the basic law of murder or of contract in any case before them, a rule of 'precedent' binds them to the law as declared by higher courts in their jurisdiction.” . Because this system of precedence which dates back to the crueler standards of justice extant in earlier times a judge relying upon common law must consider and utilize any rule created by precedence. Civil justices must consider and accept the rules created by legislation. In 19th century England, the House of Lords, which is the highest court of the land, held that it was bound by its own precedence. This was changed in the 1960s when it finally amended that rule and permitted itself to reconsider the earlier rulings. This however, did not alleviate the lower courts from being held to the decisions rendered by higher courts of law.
Both civil and common law courts are not just bound by statute and precedence, they also consider the facts and how the issues of fact stand four square or conflict with the situations described in the prior cases or legislation. Because the facts are never identical in any two cases this challenges the judiciary to reach a verdict based upon the situations in each case as it comes before the bar, and not consider any information gleaned from outside sources regarding that matter. Because of this, there is no need for the judge to be familiar with the case before it comes before the bench. How the court views the facts in a particular case can affect how courts interpret and apply similar cases in subsequent cases. In this manner, Common Law slowly evolves. .
The United Kingdom and the former colonies of the British Empire generally utilize a system of Common Law. Because of evolving standards of justice, this can be modified by legislation and subsequent rulings by higher courts. Most nations that are created with a Common Law standard retain Common Law as the foundation of its Judicial System. In the United States of America, a hybrid of both Common and Civil Law was created in their tripartite system of governance with checks and balances. In this system, the legislature creates the law, the executive branch must approve the law and the Judiciary department interprets the law and rules on whether or not it is in accordance with the Constitution. Federal legislation supersedes State laws; however, the States have the freedom to create any area of law that is not subject to Federal Legislation. No legislative body, state or federal is permitted to create a law that conflicts with the United States Constitution as interpreted and determined by the United States Supreme Court that is the highest court in the land. The United States Supreme Court is also bound by precedence, however it has traditionally permitted itself the flexibility to overturn its own decisions as circumstances, language and further law is developed.
While the definitions of Civil and Common Law are dependent upon the origins of the governing rules of civilian conduct, Civil Law being created by legislature and Common Law evolving from precedence, they both are dependent upon the Judiciary System to interpret and apply them to the facts. This provides an opportunity for both legal systems to evolve through the Judiciary’s application of modern community standards, understanding of language and concepts of equity, as it exists for any given case that comes before the bench. Both systems also have a high court that has in its power the right and responsibility to overturn its own prior decisions and interpretations if it feels that this action is necessary for justice to prevail in concord with the facts presented in that matter at bar.
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